Judgment of a learned Single Judge of the Delhi High
Court holding that the Delhi School Tribunal (in short the
'Tribunal') while hearing appeal of a dismissed employee of
the appellant-school preferred under Section 8(3) of the
Delhi School Education Act, 1973 (in short the 'Act') was
not required to refer the appeal to an arbitrator on an
application being filed before it by the management of the
school under Section 8(1) of the Arbitration and
Conciliation Act, 1996 (in short the 'Arbitration Act') is
under challenge in this appeal.

Factual position is almost undisputed and it is
unnecessary to set out the details. In a nutshell the same
is as follows:

Managing Committee of an un-aided minority institution
is the appellant. The respondent No.1- Vijay Kumar
(hereinafter referred to as the 'employee') was working as
an Assistant Teacher in the school known as Montfort Senior
Secondary School (hereinafter referred to as the 'School').
Disciplinary action was taken against him and by order dated
4.5.2000 the Managing Committee terminated his services.
Against the order of termination, an appeal was preferred
before the Tribunal under Section 8(3) of the Act. The
present appellant filed an application under Section 8(1) of
the Arbitration Act for reference to an arbitrator. The
Tribunal dismissed the application by its order dated
7.6.2001. The same was challenged in a writ petition filed
before the Delhi High Court and a learned Single Judge by
the impugned judgment upheld the view of the Tribunal and
dismissed the writ petition.

In support of the appeal, it was submitted that Chapter
V of the Act applies to un-aided minority schools and
Section 15 of the Act deals with contract of service. Clause

(e) of sub-section (3) of Section 15 deals with arbitration
of dispute arising out of any breach of contract between the
employee and the managing committee with regard to certain
aspects. It is submitted that clause (e) of sub-Section (3)
of Section 15 clearly makes arbitration mandatory. As per
the requirement of Section 15 the school is legally bound to
enter into a written contract of service with every
employee. Since there is a specific provision for an
arbitration and there is no dispute that a written contract
of service was entered into, the Tribunal was in law
required to refer the matter to an arbitrator. The Service
Rules for the staff of the school govern the conditions of
service. They are called "Montfort School Staff Rules"
(in short 'Staff Rules") and have come into effect from
1st July, 1974. Reference is made to Rule 24 dealing with
Code of Conduct and Rule 31 containing an arbitration
clause. Chapter IV of the Act deals with terms and
conditions of service of recognized private schools. Section
12 of the Act states that the provision of Chapter IV is not
applicable to un-aided minority schools. Though Section 12
of the Act was held to be discriminatory and void in Frank
Anthony Public School Employees' Association v. Union of
India and Ors. (AIR 1987 SC 311) and The Ahmedabad St.
Xaviers College Society and Anr. v. State of Gujarat and
Anr. (AIR 1974 SC 1389), yet effect of Section 15 cannot be
diluted.

There is no appearance on behalf of respondent No.1.
Therefore, considering the importance of the matter
involved, we requested Mr. P.S. Narasimha to assist the
Court as Amicus Curiae. He has placed various provisions of
the Act and referring to decisions in Frank Anthony and St.
Xaviers cases (supra), he submitted that the decision of a
learned Single Judge does not require any interference.
According to him full effect has to be given to both Chapter
IV and V.

In order to appreciate the rival submissions the
relevant provisions of the Act need to be noted. While
Chapter IV prescribes various statutory rights, privileges
and remedies for the employees of private aided schools,
Chapter V is restricted in its operation and enables
creation of contractual rights with the employees of the
unaided minority schools. The remedy for enforcing the
contractual right is provided in Section 15(3) (e) of the
Act.

Section 8(3), Section 11 and Section 15 read as under:

Section 8(3):- Any employee of a recognized
private school who is dismissed, removed or
reduced in rank may, within three months
from the date of communication to him of
the order of such dismissal, removal or
reduction in rank, appeal against such
order to the Tribunal constituted under
Section 11.

Section 11 :- Tribunal

1. The Administrator shall, by
notification, constitute a Tribunal, to be
known as the " Delhi School Tribunal"
consisting of one person:

Provided that no person shall be so
appointed unless he has held office as a
District Judge or any equivalent judicial
office.

2. If any vacancy, other than a temporary
absence, occurs in the office of the
presiding officer of the Tribunal, the
Administrator shall appoint another
person, in accordance with the provisions
of this section, to fill the vacancy and
the proceedings may be continued before
the Tribunal from the stage at which the
vacancy is filled.

3.The Administrator shall make available
to the Tribunal such staff as may be
necessary in the discharge of its
functions under this Act.

4. All expenses incurred in connection
with the Tribunal shall be defrayed out of
the Consolidated Fund of India.

5. The Tribunal shall have power to
regulate its own procedure in all matters
arising out of the discharge of its
functions including the place or places at
which it shall hold its sitting.

6. The Tribunal shall for the purpose of
disposal of an appeal preferred under this
Act have the same powers as are vested in
a court of appeal by the Code of Civil
Procedure, 1908 (5 of 1908) and shall also
have the power to stay the operation of
the order appealed against on such terms
as it may think fit.

Section 15:- Contract of Service

1. The managing committee of every unaided
minority school shall enter into a
written contract of service with every
employee of such school;

Provided that if, at the
commencement of this Act, there is no
written contract of service in relation
to any existing employee of an unaided
minority school, the managing committee
of such school shall enter into such
contract within a period of three months
from such commencement;

Provided further that no contract
referred to in the foregoing proviso
shall vary to the disadvantage of any
existing employee the term of any
contract subsisting at the commencement
of this Act between him and the school.

2. A copy of every contract of service
referred to in sub-section (1) shall be
forwarded by the managing committee of
the concerned unaided minority school to
the Administrator who shall, on receipt
of such copy, register it in such manner
as may be prescribed.

3. Every contract of service referred to in
sub-section (1)shall provide for the
following matters namely:

(a)the terms and conditions of service of
the employee, including the scale of pay
and other allowances to which he shall be
entitled;

(b)the leave of absence, age of
retirement, pension and gratuity or
contributory provident fund in lieu of
pension and gratuity, and medical and
other benefits to which the employee shall
be entitled;

(c)the penalties which may be imposed on
the employee for the violation of any Code
of Conduct or the breach of any term of
the contract entered into by him;

(d)the manner in which disciplinary
proceedings in relation to the employee
shall be conducted and the procedure which
shall be followed before any employee is
dismissed, removed from service or reduced
in rank;

(e)arbitration of any dispute arising out
of any breach of contract between the
employee and the managing committee with
regard to

(i) the scales of pay and
other allowances.

(ii)leave of absence, age of
retirement, pension, gratuity,
provident fund, medical and
other benefits.

(iii)any disciplinary action
leading to the dismissal or
removal from service or
reduction in rank of the
employee.

(f)any other matter which, in the opinion
of the managing committee ought to be or
may be specified in such contract.

As noted above, Section 15 specifically applies to un-aided
minority schools. Rule 31 of the Staff Rules is also of
some relevance and reads as follows:

"If the employee feels aggrieved against the
decision of the disciplinary committee or of
the Managing Committee, he has right to
appeal to the arbitrator, appointed as such
by the society. His decision shall be final
and binding on both parties".

Sections 5 and 8 of the Arbitration Act are also
relevant and read as under:

"Section 5 - EXTENT OF JUDICIAL
INTERVENTION.

Notwithstanding anything contained in any
other law for the time being in force, in
matters governed by this Part, no judicial
authority shall intervene except where so
provided in this Part.

8- POWER TO REFER PARTIES TO ARBITRATION
WHERE THERE IS AN ARBITRATION AGREEMENT.

(1) A judicial authority before which an
action is brought in a matter which is the
subject of an arbitration agreement shall, if
a party so applies not later than when
submitting his first statement on the
substance of the dispute, refer the parties
to arbitration.

(2) The application referred to in sub-
section (1) shall not be entertained unless
it is accompanied by the original arbitration
agreement or a duly certified copy thereof.

(3) Notwithstanding that an application has
been made under sub-section (1) and that the
issue is pending before the judicial
authority, an arbitration may be commenced or
continued and an arbitral award made."

Section 2(4) of the Arbitration Act embraces statutory
arbitration within the ambit of arbitration agreement over
which the provisions of the Act are applicable. Reading of
Rule 31 of the Staff Rules and Section 2(4) makes it clear
that a statutory arbitration agreement was entered into
between the parties.

In Frank Anthony's case (supra) it was held in
paragraphs 3, 13, 20 and 21 as follows:

"3. The attack of the petitioner against
Section 12 of the Delhi Education Act was
based on Article 14 while the provisions were
sought to be sustained by the respondents on
the basis of Article 30 of the Constitution.
While it was argued by Mr Vaidyanathan,
learned counsel for the petitioner that
Section 12 was hit by Article 14 and that
Sections 8 to 11 did not, in any manner,
impinge upon Article 30 of the Constitution,
it was argued, on behalf of the respondents,
by the learned Additional Solicitor-General
and by Shri Frank Anthony, that the
classification made by Section 12 was
perfectly valid and that, but for Section 12,
Sections 8 to 11 would have to be held to
interfere with the right guaranteed by
Article 30 to religious and linguistic
minorities to administer educational
institutions of their choice and Sections 8
to 11 would consequently be inapplicable to
such minority educational institutions.

13. Thus, there now appears to be a general
and broad consensus about the content and
dimension of the Fundamental Right guaranteed
by Article 30(1) of the Constitution. The
right guaranteed to religious and linguistic
minorities by Article 30(1) is twofold, to
establish and to administer educational
institutions of their choice. The key to the
article lies in the words "of their own
choice". These words indicate that the extent
of the right is to be determined, not with
reference to any concept of State necessity
and general societal interest but with
reference to the educational institutions
themselves, that is, with reference to the
goal of making the institutions "effective
vehicles of education for the minority
community or other persons who resort to
them". It follows that regulatory measures
which are designed towards the achievement of
the goal of making the minority educational
institutions effective instruments for
imparting education cannot be considered to
impinge upon the right guaranteed by Article
30(1) of the Constitution. The question in
each case is whether the particular measure
is, in the ultimate analysis, designed to
achieve such goal, without of course
nullifying any part of the right of
management in substantial measure. The
provisions embodied in Section 8 to 11 of the
Delhi School Education Act may now be
measured alongside the Fundamental Right
guaranteed by Article 30(1) of the
Constitution to determine whether any of them
impinges on that fundamental right. Some like
or analogous provisions have been considered
in the cases to which we have referred. Where
a provision has been considered by the Nine
Judge Bench in Ahmedabad St. Xaviers College
v. State of Gujarat [(1975) 1 SCR 173], we
will naturally adopt what has been said
therein and where the Nine Judge Bench is
silent we will have recourse to the other
decisions.

20. Thus, Sections 8(1), 8(3), 8(4) and 8(5)
do not encroach upon any right of minorities
to administer their educational institutions.
Section 8(2), however, must, in view of the
authorities, be held to interfere with such
right and, therefore, inapplicable to
minority institutions. Section 9 is again
innocuous since Section 14 which applies to
unaided minority schools is virtually on the
same lines as Section 9. We have already
considered Section 11 while dealing with
Section 8(3). We must, therefore, hold that
Section 12 which makes the provisions of
Chapter IV inapplicable to unaided minority
schools is discriminatory not only because it
makes Section 10 inapplicable to minority
institutions, but also because it makes
Sections 8(1), 8(3), 8(4), 8(5), 9 and 11
inapplicable to unaided minority
institutions. That the Parliament did not
understand Sections 8 to 11 as offending the
fundamental right guaranteed to the
minorities under Article 30(1) is evident
from the fact that Chapter IV applies to
aided minority institutions and it cannot for
a moment be suggested that surrender of the
right under Article 30(1) is the price which
the aided minority institutions have to pay
to obtain aid from the government.

21. The result of our discussion is that
Section 12 of the Delhi School Education Act
which makes the provisions of Chapter IV
inapplicable to unaided minority institutions
is discriminatory and void except to the
extent that it makes Section 8(2)
inapplicable to unaided minority
institutions. We, therefore, grant a
declaration to that effect and direct the
Union of India and the Delhi Administration
and its officers, to enforce the provisions
of Chapter IV except Section 8(2) in the
manner provided in the chapter in the case of
the Frank Anthony Public School. The
management of the school is directed not to
give effect to the order of suspension passed
against the members of the staff."

In St. Xaviers' case (supra) the following observation
was made, which was noted in Frank Anthony's case (supra):

"A regulation which is designed to prevent
mal-administration of an educational
institution cannot be said to offend clause
(1) of Article 30. At the same time it has
to be ensured that under the power of making
regulation nothing is done as would detract
from the character of the institution as a
minority educational institution or which
would impinge upon the rights of the
minorities to establish and administer
educational institutions of their choice.
The right conferred by Article 30(1) is
intended to be real and effective and not a
mere pious and abstract sentiment; it is a
promise of reality and not a teasing
illusion. Such a right cannot be allowed to
be whittled down by any measure masquerading
as a regulation. As observed by this Court
in the case of Rev. Sidhajbjai Sabhai
(supra), regulations which may lawfully be
imposed either by legislative or executive
action as a condition of receiving grant or
of recognition must be directed to making the
institution while retaining its character as
minority institution as an educational
institution. Such regulation must satisfy a
dual test the test of reasonableness, and
the test that it is regulative of the
educational character of the institution and
is conclusive to making the institution an
effective vehicle of education for the
minority or other persons who resort to it."

The effect of the decision in Frank Anthony's case
(supra) is that the statutory rights and privileges of
Chapter IV have been extended to the employees covered by
Chapter V and, therefore, the contractual rights have to be
judged in the background of statutory rights. In view of
what has been stated in Frank Anthony's case (supra) the
very nature of employment has undergone a transformation and
services of the employees in minorities un-aided schools
governed under Chapter V are no longer contractual in nature
but they are statutory. The qualifications, leaves,
salaries, age of retirement, pension, dismissal, removal,
reduction in rank, suspension and other conditions of
service are to be governed exclusively under the statutory
regime provided in Chapter IV. The Tribunal constituted
under Section 11 is the forum provided for enforcing some of
these rights. In Premier Automobiles Ltd. v. Kamlekar
Shantaram Wadke of Bombay and Ors. (1976 (1) SCC 496), it
has been observed that if a statute confers a right and in
the same breath provides for a remedy for enforcement of
such right, the remedy provided by the statute is an
exclusive one. If an employee seeks to enforce rights and
obligations created under Chapter IV, a remedy is available
to him to get an adjudication in the manner provided in
Chapter IV by the prescribed forum i.e. the Tribunal. That
being so, the Tribunal cannot and in fact has no power and
jurisdiction to hear the appeal on merits and only way is to
ask the parties to go for arbitration.

According to learned counsel for the appellant though
there may be two remedies available to the dismissed
employee, that is, one the appeal and the other before the
arbitrator, his stand was that when one of the parties i.e.
the employer wants a particular forum for adjudication there
cannot be a compulsion for him to go before the forum chosen
by the other party. This argument in our view is clearly
without substance. Even if there are plural or multiple
remedies available, the principle of dominus litis has clear
application. In Dhannalal v. Kalawathi Bai (2002 (6) SCC 16)
this Court relying on Ganga Bai v. Vijay Kumar (1974 (2) SCC

393) held as under:

"There is an inherent right in every
person to bring a suit of a civil nature
and unless the suit is barred by
statute, one may, at one's peril, bring
a suit of one's choice. It is no answer
to a suit, howsoever frivolous the
claim, that the law confers no such
right to sue. A suit for its
maintainability requires no authority of
law and it is enough that no statute
bars the suit.

In Dhannalal's case (supra) it was further held as under:

"The plaintiff is dominus litis, that
is, master of, or having dominion over,
the case. He is the person who has
carriage and control of an action. In
case of conflict of jurisdiction the
choice ought to lie with the plaintiff
to choose the forum best suited to him
unless there be a rule of law excluding
access to a forum of the plaintiff's
choice or permitting recourse to a forum
will be opposed to public policy or will
be an abuse of the process of law."

A question has been raised as to whether the Tribunal
is a judicial authority and/or whether it exercises judicial
power in the background of sub-Section (1) of Section 8 of
the Arbitration Act. The expression 'Judicial Authority' has
not been defined under the said Act. The Tribunal is
presided by a judicial officer of equal rank of the District
Judge. The expenditure incurred on the Tribunal is defrayed
from the Consolidated Funds of India. It is vested with the
power to regulate its own proceedings and is vested with
same powers as are vested in a Court of Law under the Code
of Civil Procedure, 1908 (in short the 'CPC'). One important
factor is that the Tribunal has a power to stay the
operation of the order appealed against.

Finality has been attached to the order of the Tribunal
subject to any judicial review under Article 226/227 or
Article 32 of the Constitution of India, 1950 (in short the
'Constitution'). Meaning of the words "act judicially" and
"judicial power" need to be noted at this juncture.
Provisions of Section 11 of the Act clearly vest all the
powers of a civil appellate court in the Tribunal while
dealing with an appeal preferred before it under Section
8(3) of the Act.

"The term "judicial" does not necessarily
mean acts of a judge or legal tribunal
sitting for the determination of matters of
law, but for the purpose of this question a
judicial act seems to be an act done by
competent authority, upon consideration of
facts and circumstances and imposing
liability or affecting the rights of
others."

"The words "judicial power" as used in
section 71 of the Constitution mean the power
which every sovereign authority must of
necessity have to decide controversies
between its subjects or between itself and
its subjects whether the rights relate to
life, liberty or property. The exercise of
this power does not begin until some tribunal
which has power to give a binding and
authoritative decision (whether subject to
appeal or not) is called upon to take
action."

In Rex Vs. London County Council (1931) 2 KB 215 (F)
judicial authority was defined as under:-

"It is not necessary that it should be a
Court in the sense in which this Court is a
court; it is enough if it is exercising,
after hearing evidence, judicial functions in
the sense that it has to decide on evidence
between a proposal and an opposition and it
is not necessary to be strictly a Court."

In Royal Aquarium and summer and Winter Garden Society Ltd.
v. Parkinson (1892 (1) QB 431) dealing with the meaning of
the word 'judicial' it was observed as under:

"The word 'judicial' has two meanings. It
may refer to the discharge of duties
exercisable by a Judge or by Justices in
Court or to administrative duties which need
not be performed in court, but in respect of
which it is necessary to bring to bear a
judicial mind, that is, a mind to determine
what is fair and just in respect of the
matters under consideration."

Reference to expressions "judicial", and "judicial
power" as detailed in Advanced Law Lexicon by P. Ramanath
Aiyar, 3rd Edition, 2005 (at pages 2512 and 2518) would be
appropriate:

"Judicial: Belonging to a cause, trial or
judgment; belonging to or emanating from a
judge as such; the authority vested in a
judge. (Bouvier L. Dict.); of, or belonging
to a Court of justice; of or pertaining to a
judge; pertaining to the administration of
justice, proper to a Court of law.

The word "judicial" is used in two senses.
The first to designate such bodies or
officers "as have the power of adjudication
upon the rights of persons and property. In
the other class of cases it is used to
express an act of the mind or judgment upon a
proposed course of official action as to an
object of corporate power, for the
consequences of which the official will not
be liable, although his act was not well
judged. (See Royal Aquarium v. Parkinson,
(1892) 1 QB 431).

In "Words and Phrases Legally Defined" by
John B. Saunders, Volume 3, at page 113,
"Judicial Power" has been defined:

"If a body which has power to give a binding
and authoritative decision is able to take
action so as to enforce that decision, then
but only by then, according to the definition
quoted, all the attributes of judicial power
are plainly present." "Judicial power" as
defined by Chief Justice Griffith in Huddart
Parker and Co. v. Moorehead (1909) 8 CLR 330
at 357 approved by the Privy Council in Shell
Company of Australia v. Federal Commr. Of
Taxation, (1931) AC 275 at p.283 means the
power which every sovereign authority must of
necessity have to decide controversies
between its subjects, or between itself and
its subjects, whether the rights relate to
life, liberty or property. The exercise of
this power does not begin until some tribunal
which has power to give a binding and
authoritative decision (whether subject to
appeal or not) is called upon to take action.

The authority to determine the rights of
persons or property by arbitrating between
adversaries in specific controversies at the
instance of a party thereto; the authority
vested in some Court, officer, or person to
hear and determine when the rights of persons
or property or the propriety of doing an act
is the subject-matter of adjudication.
(Grider v. Tally 54, Am Rep 65).

A judge exercises "judicial powers" not
only when he is deciding suits between
parties, but also when he exercises
disciplinary powers which are properly
appurtenant to the office of a judge. (A.G.
of Gambia v. N' Jie, 1961 AC 617.

At first flush, Sections 8(3) and 15 of the Act may appear
to be self-contradictory. But it is really not so, when
considered in the background of what is stated in Frank
Anthony and St. Xaviers' cases (supra). By giving benefit
of Section 8(3) to employees of recognized unaided minority
schools, they are put at par with their counterparts in
private schools. The two provisions serve similar purpose
i.e. providing a forum for ventilating grievances before a
forum. Once a remedy under one is exhausted it is not
permissible to avail the other one.

As noted by this Court in Bank of India v. Lekhimoni
Das and Ors. (2000 (3) SCC 640), as a general principle
where two remedies are available under law, one of them
should not be taken as operating in derogation of the other.

In Canara Bank v. Nuclear Power Corporation of India
Ltd. (1995 (3) JT SC 42) this Court held that the Company
Law Board was a Court while exercising the functions of the
Court. No serious challenge is raised by learned counsel for
the appellant to the proposition that the Tribunal is a
judicial authority within the meaning of the Arbitration
Act.

While accepting the stand of the appellant in a given
case the provisions of Section 8(3) of the Act could be
rendered nugatory by requiring the Tribunal to refer the
matter to an arbitrator.

In view of what has been stated above, the inevitable
conclusion is that the Civil Appeal No.6593 of 2003 is sans
merit.

Civil Appeal No. 5143/2005
In view of our judgment in C.A. No.6593 of 2003, this
appeal is equally without merit.

We record our appreciation for the valuable assistance
rendered by Mr. P.S. Narasimha appeared as Amicus Curiae.